April 2014: Issue 10 The quarterly Newsletter for Investigators and Prosecutors Serious about Crime INDICTMENTFollow for regional legal updates at: https://twitter.com/IndictmentEC The United States Department of this contributes to the resulng increase in State released their 2014 convic9ons. Internaonal Control Strategy Report This first quarter of 2014 has seen new legislave amendments, launch of a Prison with the significant news that drug Video Link, new publica9ons to assist the fight convic9ons in the Eastern Caribbean against organised crime, issuance of Prac9ce in 2013 were up by 21% from 2012 Direcons and an important Judgment from the see: hp://www.state.gov/j/inl/rls/ Privy Council on the role of the DPP. It is hoped these will lead to even more successful judicial nrcrpt/2014/vol1/222883.htm outcomes and we report on these This increase is due to the dedicaon of the developments to assist with that aim! Coast Guard, Customs and the Police who have We also include our regular features: Stop the interdicted more cocaine and cannabis in 2013 Press and Legal News from the Region. (cocaine seizures increased more than 400% Also, as we approach the World Cup in Brazil, from 2012). Another factor is improving case preparaon, through beHer co-ordinaon, Mr Belmarsh recounts a football coverup that between invesgators and prosecutors. led to the fall from grace of a contender! Importantly new legislaon, notably cash As always please follow for regular regional seizure provisions and the use of video updates at: hps://twier.com/IndictmentEC recording of interviews, are being applied. All of 1 Follow for regional legal updates at: https://twitter.com/IndictmentEC In this Edition:!! ! ! Page The Power to Request........................3 Paying for our Security.....................5 Investigation Anonymity.....................6 !Application for Investigation Anonymity.............7 Application for Witness Anonymity Order.............8 Application for Special Measures....................9 Application for Live Link for witness out of State.12 Proving the Point..........................13 A Survivor’s Story.........................14 The Rise and Fall of Tony Kay..............15 Stop the Press ............................18 Legal News from the Region - Laws..........19 Legal News from the Region - Decisions.....20 Legal News from Around the World...........21 Editor: Sejilla Mc Dowall Opinions expressed in this newsletter do not necessarily represent the views of the UK or US Governments 2 THE POWER TO REQUEST The Privy Council delivered its Judgment in the Commissioner of Police and another v Steadroy C.O. Benjamin [2014] UKPC 8 on 16th April 2014. In this article we consider the affect on the working relationship between the police a power which arises by necessary implication - to instruct the police not to institute criminal proceedings against an and the DPP in the region. individual. The nature of a constitution requires that a broad, The facts of this matter relate to the issuance of an Antigua and generous and purposive approach be adopted to ensure that its Barbuda passport in the name of Tyrel Dusty Brann found in the interpretation effects the deeper inspiration and aspiration of possession of Jamaican national, Shane Allen, with a photograph of the basic concepts on which it Is founded. A construction of the the likeness of Allen. The police started an investigation and upon Constitution which leads to the police disregarding instructions review of the application form for the passport, discovered that Mr of the Director of Public Prosecutions not to prosecute by Steadroy Benjamin had countersigned that the photograph was a relying on the power to institute proceedings under the Police true likeness of Brann, who he declared he had known for two Act would be narrow, ungenerous and not purposive.” years. However Mr Brann had died several months previously. Therefore the question for the Privy Council was: Does the DPP Mr Benjamin provided a statement to the police, believing that this have a general power to prevent the police from instituting criminal would be used in a prosecution against those who applied for the proceedings? passport. In this statement Mr Benjamin explained that he had countersigned the application believing that his statements were The Board, following the minority decision of the then Pereira J.A. in true. the Court of Appeal, answered negatively and found difficulty with the majority decision that a DPP has the power to prevent the Police The Police were going to charge Mr Benjamin with an offence from instituting proceedings as implicit in his power under the contrary to the Forgery Act, when the DPP became aware of this Constitution to discontinue proceedings. The Board, reconciled that decision. The DPP reviewed the Police file and resolved that guilt as persons and authorities other than the Police can institute couldn’t be established and instructed that Mr Benjamin shouldn’t proceedings, such as Inland Revenue or the Immigration be charged. The Police aware of this instruction, continued to lay a Department and there is no power to prevent them issuing complaint and a summons was issued against Mr Benjamin. proceedings, logically the power to prevent cannot be derived from the power to discontinue (paragraph 26) Mr Benjamin filed an application for leave to apply for judicial review of the Police Commissioner’s decision to lay complaints against However, Lord Wilson who delivered the Judgment on behalf of the him. This was on the basis that the Commissioner’s decision was Board, held that (paragraph 33): unlawful considering the DPP’s instruction. Harris J in the High “The Board’s conclusion does not disable it from stressing the Court ruled that the DPP didn’t have the power to prevent the Police importance of a good, mutually respectful, working relationship from laying complaints. between the police and the Director. Unresolved conflict between them of the sort exemplified in this appeal damages The Court of Appeal reversed this decision and held that the DPP public confidence in the administration of justice. The Director was able to guide the Police on whether to institute proceedings by can generally be expected to have a wider perception than the way of charge. police of whether, for example, a proposed prosecution is in the In summary the Court of Appeal held (see page 2 of Judgment public interest. The Director cannot instruct but he can request. HCVAP 2009/023): The police would be wise to tread with care before deciding to reject a request by the Director not to institute proceedings.” “When one considers the full amplitude of the powers conferred The issue remains, that whilst the DPP occupies a paramount upon the Director of Public Prosecutions, it would take an position according to the Constitutions of the region, will the Police overly austere reading of the Constitution to hold will follow any such “request”? notwithstanding the power to discontinue proceedings brought Continued on page 4 by police, the Director of Public Prosecutions lacks the power - 3 THE POWER TO REQUEST The police would be wise to tread with care before deciding to reject a request by the Director .... Paragraph 33 from the Judgment refers to an example of public interest stages, (known as the “Full Code Test”) applying the public interest test. What about consideration means the DPP and the public would know that a decision of the evidence for those most serious of offences so there has been made using objective principles. Conversely, if the is a robust prosecution case? Where evidence is complex Police can’t justify a decision, but they still intend to will the Police be best placed to decide charges? In cases continue to charge, then following the principles in involving a well known public figure, is the DPP best placed paragraph 33 of the Board’s Judgment and the Code, the to advise on charge due to his independence? DPP would be well within his or her rights to request that the person isn’t charged. The answer to the consideration of evidential issues must be that the Police and DPP work together as a “Prosecution However will a DPP’s request be followed, if before Team” applying objective and coherent policies, charging, further evidence is needed to satisfy the such as the Code for Prosecutors (or Guide in DPP that there is a reasonable prospect of Antigua and Barbuda), on the most serious, The Director conviction as stipulated in the Evidential Stage of complex and notorious matters. There should cannot instruct the Full Code Test? The Board’s Judgment makes be a “cradle to grave” approach from but he can it clear that the Police would be wise to follow the investigation to prosecution, to confiscation of request request from the DPP, who would have a “wider assets. Then any future damage to public perception” of public interest issues. In appropriate confidence in the administration of justice will be matters this should also extend to evidential issues, significantly reduced. which are complex, sophisticated and involve difficult questions of law. As the Codes of the region state in the It would seem sensible that both the Police and the DPP DPP’s introduction: work consistently and know how their respective decisions are made applying the Code. This will then prevent conflicts, “Great care must always be taken by those who decide as each know why they are making their respective these issues, always remembering that wrong decisions decisions or requests, using a benchmark test. may destroy lives